January 10, 2018

Under Pressure from Business Groups, USCIS Will Probably Not Do Away With AC21 Extensions

Early in January 2018, credible sources reported that the Department of Homeland Security (DHS) might be setting its sights on ending three year H-1B extensions that were previously granted under provisions of the American Competitiveness in the 21st Century Act (AC21). There are two provisions in AC21 that allow for extension of an H-1B worker’s stay in H-1B status, beyond the statutory six year limit. The first provision, Section 104(c), states that USCIS “may” grant extensions in three year increments, if the H-1B worker has an approved employment-based immigrant visa petition (I-140) and cannot yet apply for permanent residence because their priority date is not yet current. This provision allows H-1B employees to continue living and working in the U.S. while they await the chance to file their green card applications. It mainly benefits nationals of China and India, whose priority dates are severely backlogged and who often wait a decade or more to become permanent residents. DHS was reportedly considering interpreting the permissive language “may” in the statute in order to revise the implementing regulations and do away with these three year extensions. This would impact thousands of H-1B workers and their employers, across all sectors of the U.S. economy. On January 9, 2018, however, the same news outlet reported that DHS will probably not target an end to the three year extensions.

The chief of media relations for U.S. Citizenship and Immigration Services (USCIS) told the news outlet, “…USCIS is not considering a regulatory change that would force H-1B visa holders to leave the United States by changing our interpretation of section 104(c) of AC-21, which provides for H-1B extensions beyond the 6 year limit. Even if it were, such a change would not likely result in these H-1B visa holders having to leave the United States because employers could request extensions in one-year increments under section 106(a)-(b) of AC21 instead.”

This second provision of AC21 referenced by USCIS, Section 106(a), requires DHS to grant one year extensions of H-1B status, beyond the six year limit, in cases where 365 days have passed since a labor certification “PERM” application or an I-140 petition have been filed on the H-1B worker’s behalf. The language in this portion of the statute instructs that the DHS Secretary “shall” extend H-1B status in this scenario. Therefore, it seems that this portion of the implementing regulations would not be open to revision. Many H-1B workers who would otherwise be eligible for a three–year extension would also be eligible for one–year extensions. Of course, there are additional costs and administrative burden involved if extension petitions have to be filed on an annual basis, where they could otherwise be filed every three years.

What does this mean for H-1B workers and their employers? First, although USCIS seems to vacillate, the government has not yet released a formal announcement or proposed regulation to limit AC21 extensions. In order for DHS to do away with three year H-1B extensions beyond the six year maximum, it would first have to publish the regulations in the Federal Register, allow for a notice and comment period, and then finalize and implement the regulation. If DHS receives enough negative commentary, it is possible that it will retract the revision. If and when a proposed regulation is published, our firm will provide instructions on how to comment. If the change in regulation goes forward and is ultimately implemented, it could be subject to litigation.

We will continue to provide updates as they are available.

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